Higby v. Ayres

The opinion of the court was delivered by Valentine, J.:

1. Power and authority pro tem. judge, The laws of Kansas provide for such an officer as a judge pro tem. of the district court. (Constitution, article 3, § 20; Gen. Stat., 304, §§ 4 to 8.) And hence, whenever it appears from the record of a case that the action was tried before such a judge it will be presumed, in the absence of anything to the contrary, that such judge had the requisite authority to hear and determine the case. The district court of Kansas being a court of general and superior jurisdiction, all presumptions, in the absence of anything to the contrary, must not only be that the court acted within the scope of its jurisdiction, but that it acted regularly and legally. And a judge pro tem. of such a court, being as much a judge of the court for the time being as the regular judge, all presumptions, in the absence of anything tc the contrary, must be in favor of his authority, and in favor of the regularity and validity of his proceedings. Whenever his authority has been duly recognized, as in this case, by the regular judge, the clerk, the sheriff, the attorneys, the parties to the suit, and others, it would hardly seem proper to allow his authority to be questioned for the first time in this court. This case was tried'before a judge pro tem. But whether such judge was duly elected and -qualified, does not appear. It does appear however that all the parties consented to try the case before, him. It also appears that there were “no statutory provisions disqualifying the regular judge from presiding at the trial.” From this we suppose that the regular judge was not sick, absent, interested, related to either of the parties, or otherwise disqualified from hearing and determining the case. But suppose the regular judge was present, and competent to hear and determine the case, still he did not do it, but allowed a judge pro tem. to do so. The *338 district court was in session. No question is raised as to the jurisdiction of the court over the subject-matter of the action and the parties to the suit. The case came regularly on for trial; a judge pro tem. tried it; the constitution and laws recognize such an officer; and whether this judge pro tem. was regularly and legally filling the office or not, still he did fill the office, and was therefore an officer de facto: and his acts are therefore not void, but like the acts and proceedings of all other officers defacto, are valid and binding. Of course, his proceedings could not be attacked collaterally. But attempt is now made to attack them directly by petition in error. This may be done where the question was raised in the court below, and proper exceptions taken. But unfortunately for the plaintiffs in error the question was not raised in the court below. Neither party objected to trying this case before said pro tem. judge, but all the parties consented thereto. The question of whether said pro tem. judge could legally try this case is now raised for the first time in this court, and we think the question is raised too late. (See Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kas., 462, 473 , and cases there cited.)

™ 2. Pleadings; failure to reply, con fesses answer reply, con- This was an action to set aside a deed of assignment made for the benefit of creditors, on the ground that the assignment was fraudulent and void. The plaintiffs had separate rights and interests, and not joint interests. The defendants answered that the plaintiff Martin, with a ful l knowledge of all the facts, acquiesced in and became a party to said assignment, and instructed and encouraged the assignee to proceed under the assignment and sell the property, etc. There was no reply filed to this answer, and there was nothing in the case which tended to show that the defendants waived a reply. On the contrary, it seems that they twice objected to the introduction of evidence because of the condition of the pleadings. And they also asked for a judgment in their favor upon the papers in the case. It is true, the objection to the evidence went to both of the plaintiffs, while it could properly apply to only *339 one of them. But still it shows that the defendants did not intend to waive a reply. Where a reply is necessary, as it was in this case, and none has been filed, it must appear affirmatively from the conduct of the defendants that the reply has been waived, or the court must take all the allegations of new matter contained in the answer as true. Where the defendants go to trial, and proceed with the trial in all respects as though a reply had been filed, such conduct on their part will authorize the court and the other party to consider that the defendants have waived a reply. But that is not the case. The evidence in this case failed to show that Martin acquiesced in said assignment with a full knowledge of all the facts. But still as such was so alleged by the defendants, and not denied by the plaintiffs, we must take it that such was the fact.

The answer does not allege, as is claimed by the plaintiffs in error, that the Ayres judgment was rendered against True as principal, and Higby as surety. The answer merely alleges that the judgment was rendered upon a promissory note on which note True was principal and Higby was surety. The answer does not state or show how the judgment was rendered; and there was no evidence upon the subject. (With reference to such judgments, see Rose v. Madden, 1 Kas., 445 ; Points v. Jacobia, 12 Kas., 50 .) No question of champerty was raised in the court below. Such question is not in this case. It is immaterial whether the court below erred or not as to the amount of money which Doolen had received from the sale of Higby’s property. We must reverse the judgment as to Martin, and there was certainly more than enough to pay Ayres.

3. Assignment for benefit of creditors. Reviewing findings of trial court. *340 4. Badges of fraud.

*339 We hardly think that the deed of assignment was void upon its face, but as we view the case it is not necessary to decide that question now, and we therefore do not wish to be understood as deciding it. It is also claimed that the assignment was fraudulent in fact, and therefore void in law. It is claimed that the assignment was made for the purpose of hindering, delaying *340 and-defrauding Higby’s creditors, and especially the plaintiffs, who were judgment-creditors of Higby. The court below finds this to be true. And while it is at least doubtful whether this finding is correct, yet there was some evidence to sustain the finding, and enough under the rules of practice to which this court has always adhered, to uphold the judgment rendered thereon. If the court below erred, as perhaps it did, in making this finding, the error was one of fact and not one of law. And as this court cannot retry the case upon the facts, but can only decide such questions of law as may be involved in the case, we cannot reverse the decision of the court below merely because it erred in its findings of facts, provided of course that there was sufficient evidence introduced from which if such evidence were uncontradicted and unexplained a court might reasonably infer what is contained in its findings. If there had been no evidence to sustain the findings, or any one of the findings, then we might reverse'the judgment of the court below for that reason; for then the question would be purely one of law. Some of the evidence which tends to show that said assignment was in fact fraudulent is as follows: lst.-Under the provisions of the deed of assignment the proceeds of the sale of the property assigned could be distributed among the creditors only, by and in accordance with the orders of all the creditors or the district court. This might cause delay and injustice. The assignee should allow all just and legal claims, and pay as much as he could on them, without waiting for the orders of all the creditors or the district court. (See Gen. Stat, ch. 6, §§ 21, 24, 35.). One creditor has no right to determine how much is due to another creditor, or when it should be paid. 2d. — It would seem from another provision of the deed of assignment that the assignor contemplated that there would be a surplus of his estate left, after paying all his debts, and there was no evidence introduced that would tend to show otherwise. Now it is generally fraudulent for a person who can pay all his debts to make an assignment. (Seibert v. Thompson, 8 Kas., 69 ; Burrill on *341 Assignments, 190.) All assignments in trust for creditors tend to hinder and delay such creditors, and cannot as a rulé be sustained unless the assignor is insolvent. 3d.-The assignor in this case was a grocer, and the business was carried on in the same place and in the same manner after the assignment that it was before. The assignor continued to reside in a part of the same house where the grocery was kept. He was sometimes in the grocery and behind the counter, and also sold goods. The same clerks remained in the store, one of whom seems to have been a sister of the assignor. The signs remained the same. The assignor’s name still remained on all the boxes, casks, etc., and the name, “E. Higby, Grocer,” still remained on the delivery-wagon. There was really no apparent change in the business. There was some evidence about two different inventories of the property which we do not precisely understand, but it is claimed by the defendants in error that such evidence indicated fraud.

There are some questions in this case which counsel have not chosen to raise, and therefore we have purposely avoided saying anything about them. 'We however desire that it be distinctly understood that we have decided no questions in this case except such as are.mentioned in this opinion.

The judgment of the court below will be affirmed as to the defendant in error Alexander H. Ayres; and it will be reversed as to the other defendant in error, Gilbert Martin. The cause will be remanded for further proceedings as between the plaintiff in error and Gilbert Martin.

All the Justices concurring.